Opinion
No. 05-04-000115-CR
Opinion issued October 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court of Appeals No. 2, Dallas County, Texas, Trial Court Cause No. MB03-24326-M. Affirmed.
OPINION
Appellant James Kevin Bailey appeals his conviction for driving while intoxicated (DWI). After a jury found appellant guilty, the trial court assessed his punishment at a fine of $1300 and 120 days' confinement in jail; however, the court suspended imposition of sentence and placed appellant on community supervision for two years. On appeal, appellant claims the trial court reversibly erred by restricting his cross-examination of a police officer about the certification requirements to administer the horizontal gaze nystagmus (HGN) field sobriety test. Concluding no reversible error is shown, we affirm. About 10:30 p.m. on April 9, 2003, appellant and Farmer's Branch police officer Derrick Rupley were driving in opposite directions on Webb Chapel in Dallas County. Rupley testified he had a green light and was preparing to turn eastbound onto Valley View from Webb Chapel when he had to stop to avoid hitting appellant who had entered the intersection against a red light. Rupley activated the lights and siren on his marked squad car and stopped appellant. As Rupley approached appellant's car, he saw appellant put an open can of beer behind his seat. Rupley also smelled the odor of alcohol. When Rupley asked appellant how much he had to drink, appellant responded "a couple of beers." Appellant stumbled as he walked to the rear of his car where Rupley administered field sobriety tests. Appellant exhibited all six clues of the HGN test. Four or more clues indicate an alcohol content of .10 or greater. Appellant also failed to properly perform other field sobriety tests as well, including the one-legged stand test, the counting test, the walk-and-turn test, and the head-tilt test. When Rupley again asked appellant what he had to drink, appellant said he had drunk a six-pack of beer. Appellant was transported from the scene and at about 11:30 p.m., appellant was given two intoxilyzer tests by Farmer's Branch intoxilyzer operator William Canales. The first test revealed an alcohol concentration of .192 and the second test an alcohol concentration of .195. The penal code defines "intoxicated" as having an alcohol concentration of 0.08 or more. Tex. Pen. Code Ann. § 49.01(2)(B) (Vernon 2003). At trial, during defense counsel's cross-examination of Rupley about the HGN test, the following occurred:
Q: Okay. Now, do you know what — by the way, how long did it take you to get certified? How many hours?
A: Twenty-four hours, sir.
Q: Twenty-four hours. Do you know of any engineers, doctors, or attorneys that can become certified in twenty-four hours?
[PROSECUTOR]: Well, I will object to the relevance.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Okay. Well, Your Honor, I want to make a Bill on all of this.
THE COURT: Well, you may.The parties later stipulated the officer's answer to the question would have been "no." While acknowledging that a trial court has some latitude to control cross-examination, appellant contends the inquiry was proper and the trial court reversibly erred in unduly restricting the scope of his cross-examination. Appellant contends the inquiry was relevant to make a point that the number of hours required for certification to administer the HGN test is minimal compared to other disciplines, and that he was harmed by not being able to make that point. The State responds that such inquiry was not only irrelevant, but also unfair in that it sought to compare an officer's training to give a particular test to the training required of others to practice their profession. Finally, the State contends that even if the trial court erred, any error was harmless. The confrontation clause of the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to confront the witnesses against him, including an opportunity to cross-examine a witness to expose his or her motivation in testifying. U.S. Const. amend VI; Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); Pointer v. Texas, 380 U.S. 400, 403-04 (1965). This right, however, is not absolute. Huff v. State, 897 S.W.2d 829, 839 (Tex.App.-Dallas 1995, pet. ref'd). A trial court has great latitude to impose reasonable limits on cross-examination based on legitimate concerns, including repetitive questioning or only marginally relevant inquiries. Van Arsdall, 475 U.S. at 679; Virts v. State, 739 S.W.2d 25, 28 (Tex.Crim.App. 1987). Rule 401 of the rules of evidence provides that "relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Appellant acknowledges that the point he sought to make was that the training required to become certified to administer the HGN test is minimal when compared to the training required for others to practice their profession. We agree with the trial court that what training may be required of other professionals not administering the test cannot be said to be relevant to the determination of whether the appellant was intoxicated. The trial court properly sustained the relevancy objection. No error is shown. Moreover, even if error occurred, it would be subject to a harmless error review. See Van Arsdall, 475 U.S. at 684; see also Young v. State, 891 S.W.2d 945, 948 (Tex.Crim.App. 1994). Because any improper limitation of cross-examination would violate the confrontation clauses of both the state and federal constitutions, it would be subject to a constitutional harmless error analysis. U.S. Const. amend. VI; Tex. Const. art. 1, § 10; Tex.R.App.P. 44.2(a); Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). After applying the relevant factors required under the constitutional harmless error standard, we determine beyond a reasonable doubt that any error did not contribute to appellant's conviction. See Van Arsdall, 475 U.S. at 684; see also Young, 891 S.W.2d at 948; Tex.R.App.P. 44.2(a). In our analysis, we have assumed the damaging potential of appellant's excluded cross-examination was fully realized. We have also considered the overall strength of the State's case, including the results of two breath tests that indicated twice the alcohol concentration of legal intoxication. Consequently, we conclude beyond a reasonable doubt that any error in disallowing appellant's question about certification was harmless. In summary, the trial court did not err by excluding one irrelevant question during appellant's cross-examination of Officer Rupley. Moreover, even if error should be deemed to have occurred, any error is harmless beyond a reasonable doubt. Consequently, we affirm.
Those factors are: (i) importance of the testimony to the State's case; (ii) whether the testimony was cumulative; (iii) other material corroborating or contradicting testimony; (iv) extent of permitted cross-examination; and (v) the overall strength of the State's case. Shelby v. State, 819 S.W.2d 544, 547 (Tex.Crim.App. 1991).